Allahabad High Court
Fakira And 12 Others vs State Of U.P. And 4 Others on 18 August, 2022
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 32 Case :- WRIT - B No. - 2093 of 2021 Petitioner :- Fakira And 12 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ranjeet Kumar Yadav Counsel for Respondent :- C.S.C.,Arun Kumar Pandey Connected with Case :- WRIT - B No. - 196 of 2021 Petitioner :- Jameel And 19 Others Respondent :- Consolidation Officer 1st And Another Counsel for Petitioner :- Rahul Mishra,Rahul Singh Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani and Case :- WRIT - B No. - 420 of 2021 Petitioner :- Mahfooj And 10 Others Respondent :- Consolidation Officer (First) And 3 Others Counsel for Petitioner :- Rahul Mishra,Rahul Singh Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 880 of 2021 Petitioner :- Alimuddin And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Jai Prakash Prasad Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 984 of 2021 Petitioner :- Ashfaque And Another Respondent :- Consolidation Officer And Another Counsel for Petitioner :- Ayub Khan Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 998 of 2021 Petitioner :- Saeed Husain Respondent :- Consolidation Officer And Another Counsel for Petitioner :- Ayub Khan Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 1000 of 2021 Petitioner :- Haseena Khatoon Respondent :- Consolidation Officer And Another Counsel for Petitioner :- Ayub Khan Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 1734 of 2021 Petitioner :- Smt. Hasrati And 2 Others Respondent :- Consolidation And Another Counsel for Petitioner :- Chandra Bhusan Kushwaha,Jagdev Singh Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 1790 of 2021 Petitioner :- Mehdi Hasan And 6 Others Respondent :- Consolidation Officer (1st) And 3 Others Counsel for Petitioner :- Jai Prakash Prasad Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 1800 of 2021 Petitioner :- Mohd. Nazar And 12 Others Respondent :- Consolidation Officer (1st) 3 Others Counsel for Petitioner :- Jai Prakash Prasad Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 1801 of 2021 Petitioner :- Mohd. Hasan @ Mohd. Husain And 2 Others Respondent :- Consolidation Officer (1st) And 3 Others Counsel for Petitioner :- Jai Prakash Prasad Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 1825 of 2021 Petitioner :- Ramzani And 2 Others Respondent :- Consolidation Officer And 3 Others Counsel for Petitioner :- Jai Prakash Prasad Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 1877 of 2021 Petitioner :- Ishtak Respondent :- Consolidation Officer And 3 Others Counsel for Petitioner :- Jai Prakash Prasad Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 2094 of 2021 Petitioner :- Mehndi Hasan And 6 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ranjeet Kumar Yadav Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 2181 of 2021 Petitioner :- Mohd. Umar And 11 Others Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Ranjeet Kumar Yadav Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 2394 of 2021 Petitioner :- Ashraf And 12 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ranjeet Kumar Yadav Counsel for Respondent :- C.S.C.,Arun Kumar Pandey and Case :- WRIT - B No. - 1071 of 2022 Petitioner :- Nababjan Respondent :- State of U.P. and Another Counsel for Petitioner :- Ayub Khan Counsel for Respondent :- C.S.C. and Case :- WRIT - B No. - 1081 of 2022 Petitioner :- Indaj Husain And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- Ayub Khan Counsel for Respondent :- C.S.C. and Case :- WRIT - B No. - 1233 of 2022 Petitioner :- Mohammad Safi And 2 Others Respondent :- State Of U P And Another Counsel for Petitioner :- Ayub Khan Counsel for Respondent :- C.S.C. and Case :- WRIT - B No. - 310 of 2022 Petitioner :- Kamlesh Kumar Saxena And Another Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Ranjeet Kumar Yadav Counsel for Respondent :- C.S.C.,Arun Kumar Pandey Hon'ble Dinesh Pathak,J.
1. In this batch of cases, common question of fact and law are involved qua post order opportunity of hearing to the persons adversely affected due to the impugned orders passed ex-parte, as the principles of natural justice and fair play has been violated.
2. The grievance of the petitioners is that they have been deprived of from their valuable right, title and interest over the land in question by the order under challenge passed behind their back sans opportunity of hearing accorded to them.
3. The Writ Petition (B) No. - 2093 of 2021 (Fakira and 12 others Vs. State of UP and 4 others) is treated as a leading file in the batch of the cases as captioned above and, accordingly, remaining cases are being decided.
4. It is apposite to mention that all writ petitions relate to the land in question situated in village Mustafapur, Thakurdwara, Moradabad. Order dated 19.10.2016 passed by the Consolidation Officer, under challenge, is common in all the writ petitions. Apart from that, in some of the writ petitions i.e. Writ Petition Nos. 1734 of 2021, 2094 of 2021, 2181 of 2021, 310 of 2021 order dated 23.12.2020 and in Writ Petition No. 2394 of 2021 order dated 23.11.2020 and in Writ Petition No. 1233 of 2022 & Writ Petition No. 1071 of 2022 order dated 19.11.2020 passed by the Consolidation Officer are challenged as well whereby name of the petitioners have been ordered to be expunged from the revenue record treating the land in question covered under Section 132 of UP Zamindari Abolition and Land Reforms Act (in brevity UPZA and LR Act).
5. Heard learned counsel for the petitioners, learned counsel for the Gaon Sabha, learned standing counsel representing State respondents and perused the record.
6. In view of the peculiar facts and circumstances of the case and order proposed to be passed, this Court proceeds to decide the instant writ petition at admission stage with the consent of the counsel for the parties present, without their respective affidavits (counter and rejoinder), with liberty to the respondents that they may move recall application if any facts, as averred in the instant writ petition are found incorrect or misleading. It is apposite to mentioned that, in maximum writ petitions, respective affidavits could not be exchanged between both the parties despite the direction given by this Court to the parties concerned.
7. The petitioners have invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the order dated 19.10.2016 and 23.12.2020 passed by the Consolidation Officer under Section 9A (2) of UP Consolidation of Holdings Act (In brevity, ''UPCH Act').
8. It is submitted by the learned counsel for the petitioners that the petitioners are the allottee of the land in question as Sirdar. Subsequently, by operation of law, they became bhumidhar with transferable right under Section 131-A of UPZA and LR Act. Long standing entry made in favour of the petitioners has illegally been disturbed by the order/s under challenge passed by the Consolidation Officer in proceeding under Section 9A(2) of UPCH Act, which was initiated on the basis of the ex-parte report submitted by the Assistant Consolidation Officer. It is furhter submitted that the Consolidation Officer by order/s under challenge, has directed to delete the exchange value of the plot in question and keep the same out of consolidation operation. Aforesaid order was passed behind the back of the petitioners without issuing any notice and without affording them opportunity of hearing. At subsequent stage, the Consolidation Officer has passed fresh order dated 23.12.2020 that too on the basis of the ex-parte report submitted by the Assistant Consolidation Officer/Consolidator. Aforesaid report was registered as well under Section 9A (2) of UP Consolidation of Holdings Act. The Consolidation Officer, vide impugned order dated 23.12.2020, has issued a direction to expunge the name of the recorded tenure holders from the land in question and the same was ordered to be recorded in the name of Ram Ganga under Class 6(2). It is further submitted that even before passing the order dated 23.12.2020 neither any notice has been issued to the petitioners nor opportunity of hearing had been afforded to them.
9. On the pointed query raised to the learned standing counsel qua opportunity of hearing being accorded to the recorded tenure holders whose name are expunged from the revenue record, he has shown his inability to contradict, despite sufficient time granted to him, the submissions made by the learned counsel for the petitioners.
10. Having considered the submissions advanced by the learned counsel for the parties and perusal of record, a short question for consideration in the instant writ petition lies in a narrow compass as to whether opportunity of hearing had been afforded to the recorded tenure holders or not, who are adversely affected owing to the impugned orders passed by the Consolidation Officer.
11. Perusal of the impugned order dated 19.10.2016 and 23.12.2020 reveal that no notice has been issued to the recorded tenure holders. Entire proceeding has been concluded only on the basis of the report submitted by the Assistant Consolidation Officer/Consolidator. In the impugned order dated 23.12.2020, there is an observation that the government counsel for the State has been heard and submitted that in view of the order dated 25.7.2001 passed by the Hon'ble Supreme Court in the case of Hinch Lal Tiwari Vs. Kamala Devi and Ors., AIR 2001 SC 3215, name of the recorded tenure holders were liable to be expunged. There is nothing in the orders dated 19.10.2016 and 23.12.2020 to demonstrate that the version of the recorded tenure holders has also been considered. There is no indication that the present petitioners were heard or afforded an opportunity of hearing before expunging their names from the revenue record.
12. It is abundantly clear that right and title of the petitioners are affected owing to violation of natural justice and fair play. They have been deprived of their valuable rights sans adhering to the cannons of natural justice. In the matter of Muzeeb Vs. Deputy Director of Consolidation, Azamgarh reported in AIR 1996 Allahabad 88, co-ordinate Bench of this Court has held that a post order opportunity of hearing is necessary to the person adversely affected in the cases where an entry is expunged or corrected in the revenue record sans opportunity of hearing. The relevant paragraph 5 of the judgment dated 16.2.1995 in case of Muzeeb (supra) is quoted hereinunder:
"5. But the matter does not end here. The possibility of an error creeping in by authority concerned cannot be ruled out. The authority passed order without hearing person adversely affected. In such matters possibility cannot be ruled out that the person affected be possessed of sufficient material by which he may be able to show that the order giving rise to entry in dispute is not a forged one. This requires safeguarding of interest of person adversely affected by correction of entry in revenue papers. This interest of affected person can be safeguarded by providing him a post order opportunity of hearing. This will also exclude possibility of error, which may arise due to want of opportunity of hearing and a possible error will also stand rectified in maintenance of correct revenue entries. For said reason a post order opportunity of hearing is necessary to person adversely affected in cases where an entry is expunged or corrected in revenue records and order correcting entry is passed without affording opportunity of hearing to person adversely affected. Correcting an entry to be based on forged or non-existing order, to which person aggrieved raises an objection that the order of correction has been wrongly passed, the aggrieved person is entitled to be heard after correction being done."
13. Explaining the principle of natural justice in the matter of Canara Bank and others Vs. Shri Debasis Das and others reported in AIR 2003 Supreme Court 2041, Hon'ble Supreme Court has expounded that order passed in violation of natural justice is no final decision on the case. Relevant paragraphs 16 and 21 of the judgment passed in Canara Bank and others (supra) is quoted hereinbelow:
"16. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
21. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114 that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co.Litt. 1418), that is, 'no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated."
14. In the case of Ram Bachan Yadav and another Vs. State of UP and others, reported in 2018 (140) RD 39, co-ordinate Bench of this Court has considered the requirement of opportunity of hearing before passing the adverse order against the recorded tenure holder expunging his name from the revenue record. The relevant paragraphs No. 14, 16 and 17 of the judgment in the case of Ram Bachan (supra) are quoted hereinunder:
"14. In the following authorities the Supreme Court has held that even before passing administrative orders affecting rights of parties opportunity of hearing shall be granted :
(1) Ashok v. Union of India, AIR 1997 SC 2298 (It was a case of ban of particular insecticides).
(2) Sahi Ram v. Awtar Singh, AIR 1999 SC 2169 (It was a case of mining lease).
(3) G. Pharmaceuticals v. State of U. P., AIR 2001 SC 3707 (It was a case of black listing of contractor).
(4) H.A. Shakoor v. Union of India, AIR 2002 SC 2423 (It was a case of reduction of category of a contractor).
(5) Director General of Police v. M. Sarkar, [1996] 3 SCR 530 (In this case constables were discharged from service on the ground that they produces a fake list from Employment Exchange without providing opportunity of hearing. Supreme Court approved the order of High Court setting aside discharge order on the ground of denial of opportunity of hearing).
(6) All India S.C. and S.T. Employees Association v. A.A. Jeen, [2001] 2 SCR 1183 (In this case hundreds of employees were affected hence Supreme Court held that they might be served in representative capacity).
(7) Godawat Pan Masala Products v. Union of India, AIR 2004 SC 4057 (In this case it was held that notification prohibiting manufacture and sale etc. of pan masala and gutka was bad in law as it had been issued without providing opportunity to the manufactures of meeting the facts relied upon in the notification in respect of injurious effects of pan masala and gutka).
(8) Canara Bank v. Debasis Das, (2003) 2 LLJ 531 (SC) (In this authority several principles of natural justice expressed in Latin words have been discussed in detail giving their history (since 1215), scope and applicability.
16.Accordingly, it is held that whenever an entry in the revenue record is to be cancelled and substituted particularly when the entry is continuing for more than a year, notice must be given to the party in whose favour entry stands even if prima facie, authority/court concerned (i.e. Deputy Collector/Sub Divisional Officer in most of the cases) is of the opinion that the entry is result of fake order or fraud.
17. Revenue, authorities/courts must remember that a party can in some cases successfully show that entry of his name in the revenue record is correct and not fake or based upon fake order. This question can be decided only and only after hearing the party concerned and likely to be affected."
15. In this conspectus as above, I find substance in the submissions advanced by the learned counsel for the petitioners that orders under challenge are passed behind the back of recorded tenure holders who are adversely affected owing to orders passed disturbing the revenue entries made in their favour. There is no indication in the orders impugned passed by the Consolidation Officer qua issuance of notice to the recorded tenure holders and affording them opportunity of hearing. The impugned orders are passed in blatant violation of natural justice and fair play. Long standing entries in the name of the recorded tenure holders, who have conferred their right as bhumidhar-with-transferable right by operation of law under Section 131-A of UPZA and LR Act, cannot be expunged in such a rough and casual manner. Considering the long standing entry based on allotment of land in lease, this Court cannot remain oblivious to the valuable rights vested in the recorded tenure holders and they deserve fair trial to protect their title over the property in question.
16. With this observation, without considering the merits of the case as a averred in the writ petition qua right and title of the petitioners, the present writ petition succeeds and is allowed, on the limited point of opportunity of hearing. The order impugned dated 19.10.2016 and 23.12.2020 are hereby quashed. The matter before the Consolidation Officer is restored to its file. Parties are relegated before the Consolidation Officer to get the matter decided de novo.
17. Petitioners are at liberty to file all the relevant documents and take all possible pleas available to them to defend their right and title over the property in question. The petitioners are hereby directed to submit their complete pleading along with the corroborative evidences in support of their claim before the Consolidation Officer possibly on or before 30.9.2022. The Consolidation Officer, in turn, shall make all endeavour to consider and decide the case expeditiously preferably within a period of five months from September 30, 2022.
18. It is expected that the case of every individual shall be considered and decided by a reasoned and speaking order, in accordance with law, after affording opportunity of hearing to the parties concerned without granting them unnecessary adjournments.
19. Remaining writ petitions in batch of cases as captioned above are decided/allowed as well in the terms and conditions as discussed above and impugned orders under challenge in said writ petitions are, accordingly, quashed.
Order Date :- 18.8.2022 vinay